The folly of originalism: Judges should stop parsing every word the founders wrote.

Hey, Judges, Stop Parsing Every Word the Founders Wrote

Hey, Judges, Stop Parsing Every Word the Founders Wrote

Eric Posner weighs in.
March 19 2013 3:41 PM

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Dear judges: Stop trying to figure out what the founders meant by every little word. You can’t, and it doesn’t matter.

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Two of three judges sitting on the panel further argued that by providing for recess appointments only to vacancies “that may happen during the Recess,” the founders intended to limit appointments to vacancies that open up during the intersession recess. But the vacancies that Obama filled could not have opened up during an intersession recess because no such recess took place.

Both of these readings are possible; they may even be plausible. The administration’s argument—that the recess means any recess, and that the vacancies that happen during the recess are vacancies that exist during the recess—is also consistent with the language. But it’s strange to think that “the Recess” means only one (intersession) recess when, even under the court’s interpretation, there have been hundreds of intersession recesses—every year there was another intersession recess up until last year—and the founders surely expected numerous such recesses unless they believed that the republic would collapse in 1791. Indeed, the Constitution repeatedly refers to “the Congress” and “the President.” If the court’s interpretation of “the” as “the single” were correct, this would mean that the founders expected only one Congress and one president to ever come into existence, when in fact (as other language makes clear) they contemplated numerous Congresses (one every two years) and numerous presidents as well.

But here’s the point. It defies belief that the founders intended to constrain recess appointments by using the word the rather than a, or by using the word happen rather than exist. If the founders had feared that the president would abuse the recess appointments power in order to create a tyranny, they would have made their intentions to constrain the president a bit more explicit.


In fact, we know next to nothing about what the founders intended because of the paucity of contemporary documents revealing their intentions. We can surmise that they wanted the president and Senate to share the appointments power but also that they recognized that the president might need to make appointments to keep the government running when the Senate was out of session. Both the court’s and the Obama administration’s readings of the clause are consistent with this general purpose, so it is idle speculation to draw on the original understanding to resolve the dispute.

What could be the source of decision then? Presidents from both parties have been making intersession and intrasession recess appointments for decades, and Congress has acquiesced until now. Because of the ambiguity of the Constitution and the natural evolution of the relations between branches, courts normally defer to historical practice. That would have been the appropriate thing to do here.

The more interesting question is why the court broke with this practice. Jeffrey Toobin detects “right-wing judicial activism.” Republicans hate a lot of agencies—and especially the NLRB and the Consumer Financial Protection Bureau. If Republicans in the Senate can block appointments, they can shut down these agencies, unless the president can make recess appointments—and maybe the three Republican judges on the court sought to assist their pals in Congress. However, the strategy of denying recesses long enough to permit recess appointments originated with the Democrat-controlled Senate during the Bush administration. The court must have realized that its ruling will hurt a Republican president as much as a Democratic president.

The opinion also contains some boilerplate about presidential self-aggrandizement, which each party worries about when the other party holds the White House. But it’s hard to imagine the NLRB or the Consumer Financial Protection Bureau as instruments of tyranny. Was it Hitler or Stalin who banned prepayment penalties for adjustable-rate subprime mortgages?

I suspect that the judges actually believed their own reasoning. And that is the most unfortunate thing about this case. The influence of originalism—the idea that the Constitution should be understood according to its original meaning—would not be so harmful if courts also acknowledged that the document is filled with ambiguities and confined themselves to enforcing only the clear rules, like the rule that the president’s term lasts four years. (Sorry, I mean a president’s term.) But driven by the current mania to find an original meaning, the court attributed to the text a level of precision that does not exist. The outcome is not necessarily rulings that are ideologically biased—just rulings that make no sense.